Trump’s Impeachment Defense Is Silent about His Unconstitutional Demand of Mike Pence

There are some weaknesses and gaps in the House impeachment case against the former President (which I’ll probably return to).

But there’s one giant gap in Trump’s defense.

Generally, Trump argues three things: his incitement was speech protected by the First Amendment. The House moved too quickly to impeach but having impeached him while he was still President the Senate can’t now try him, as required by the Constitution. Along the way he makes a soft case that his attempts to undermine the election results can’t be proven to be unjustified (in at least two places, those claims are demonstrably false).

But I’m most struck by Trump’s silence about his treatment of Mike Pence.

The House brief mentions Pence, by title and sometimes by name, 36 times. Those mentions include a description of how Pence was presiding over the counting of the electoral vote, how he fled when Trump’s mobsters flooded into the Capitol, how the attackers targeted him by name, how Secret Service barely kept him safe, how Trump’s own actions made Pence’s danger worse.

The House brief dedicates a section to how Pence refused to do what Trump explicitly asked him to do, to unilaterally discount certain electoral votes.

C. Vice President Pence Refuses to Overturn the Election Results

By the time the rally began, President Trump had nearly run out of options. He had only one card left to play: his Vice President. But in an act that President Trump saw as an unforgivable betrayal, Vice President Pence refused to violate his oath and constitutional duty—and, just hours later, had to be rushed from the Senate chamber to escape an armed mob seeking vengeance.

In the weeks leading up to the rally, President Trump had furiously lobbied Vice President Pence to refuse to count electoral votes for President Biden from any of the swing states.68 These demands ignored the reality that the Vice President has no constitutional or statutory authority to take that step. Over and over again, President Trump publicly declared that if Vice President Pence refused to block the Joint Session from finalizing President Biden’s victory, then the election, the party, and the country would be lost. “I hope Mike Pence comes through for us, I have to tell you,” President Trump said in Georgia on January 4.69 The next day, he tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.”70 President Trump reiterated this demand just hours before the rally: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”71 On the morning of January 6, President Trump reportedly told Vice President Pence, “You can either go down in history as a patriot, or you can go down in history as a pussy.”72

Later that day, while President Trump was speaking at his rally, Vice President Pence issued a public letter rejecting President Trump’s threats. “It is my considered judgment,” he wrote, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”73

This letter sounded the death knell to any peaceful methods of overturning the election outcome. It was well known that the House and Senate were going to count the lawfully certified electoral votes they had received. President Trump’s efforts to coerce election officials, state legislatures, the DOJ, Members of Congress, and his own Vice President had all failed. But he had long made it clear that he would never accept defeat. He would fight until the bitter end. And all that remained for President Trump was the seething crowd before him—known to be poised for violence at his instigation—and the Capitol building just a short march away, where Vice President Pence presided over the final, definitive accounting of President Trump’s electoral loss.

The House brief describes how, even as Pence released his letter saying that he could not, constitutionally, do what Trump asked, Trump demanded again that the Vice President do anything besides certify the vote.

He also demanded again that Vice President Pence illegally interfere with the work of the Joint Session—a position that the Vice President rejected even as President Trump spoke.

The House brief then describes how the rioters threatened to, “hang Mike Pence” and left targeted threats for him.

Videos of the events show that dozens of the insurrectionists specifically hunted Vice President Pence and House Speaker Nancy Pelosi—the first and second in the line of Presidential succession, respectively. “Once we found out Pence turned on us and that they had stolen the election, like, officially, the crowd went crazy,” said one rioter. “I mean, it became a mob.”98 Rioters chanted, “Hang Mike Pence!” 99 Another shouted, “Mike Pence, we’re coming for you … fucking traitor!”100


One of them shouted “Trump won that election!” on the Senate dais where Vice President Pence had presided. 115 Another rioter climbed onto the dais, announcing that “I’m gonna take a seat in this chair, because Mike Pence is a fucking traitor.”116 He left a note on the Vice President’s desk stating, “ITS ONLY A MATTER OF TIME / JUSTICE IS COMING.”117

It describes how, even as the attack was going on, Trump continued to complain that Pence had upheld his own oath to the Constitution.

Just over thirty minutes later, at 2:24 PM, while rioters were still attacking police and after Vice President Pence had been evacuated from the Senate floor, President Trump again tweeted to excoriate the Vice President for refusing to obstruct the Joint Session: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”144 President Trump thus singled out Vice President Pence for direct criticism at the very same time the Vice President and his family were hiding from a violent mob provoked by President Trump. [emphasis original]

In other words, a key part of the House brief describes Trump giving Pence an illegal order, and then, after Pence refused to follow that order and announced he would do his own Constitutional duty, Trump took actions to focus the anger of the mob on his own Vice President.

It’s not just what Trump said about Pence, the incitement of an assassination attempt against his Vice President that Trump claims is protected by the First Amendment, but it’s about an illegal order Trump gave to Pence, which Pence duly ignored.

That order was unconstitutional, and as such is not protected by the First Amendment.

Trump’s brief, by contrast, mentions the Vice President (only by title) just three times, two of which are simply citations from the House brief. The sole mention of the man he almost got hanged involves a concession that the Vice President was, indeed, presiding over the counting of the votes.

It is admitted that on January 6, 2021 a joint session of Congress met with the Vice President, the House and the Senate, to count the votes of the Electoral College.

But in response to the second citation from the House brief mentioning Pence, Trump instead pivots to defending the Republican members of Congress challenging state results. As part of that discussion, Trump denies any intention of interfering with the counting of Electoral votes. That denial focuses exclusively on the actions of Members of Congress, not Pence.

6. He also willfully made statements that, in context, encouraged – and foreseeably resulted in – lawless action at then Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore.” Thus, incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious act.

Answer 6: Admitted in Part, denied in part. It is admitted that persons unlawfully breached and vandalized the Capitol, that people were injured and killed, and that law enforcement is currently investigating and prosecuting those who were responsible. “Seditious acts” is a term of art with a legal meaning and the use of that phrase in the article of impeachment is thus denied in the context in which it was used. It is denied that President Trump incited the crowd to engage in destructive behavior. It is denied that the phrase “if you don’t fight like hell you’re not going to have a country anymore” had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech. It is denied that President Trump intended to interfere with the counting of Electoral votes. As is customary, Members of Congress challenged electoral vote submissions by state under a process written into Congressional rules allowing for the respective Houses of Congress to debate whether a state’s submitted electoral votes should be counted. In 2017, Democratic Members of Congress repeatedly challenged the electoral votes submitted from states where President Trump prevailed. In 2021, Republican Members of Congress challenged the electoral votes submitted from states where President Biden prevailed. The purpose of the Joint Sessions of Congress in 2017 and on January 6, 2021 was for Members of Congress to fulfill their duty to be certain the Electoral College votes were properly submitted, and any challenges thereto properly addressed under Congressional rules. Congress’ duty, therefore, was not just to certify the presidential election. Its duty was to first determine whether certification of the presidential election vote was warranted and permissible under its rules. [my italics]

Trump undoubtedly solicited Members of Congress to do just that, challenging individual states, which was itself an abuse of power (indeed, one weakness of the House brief is they don’t mention Rudy Giuliani’s second attempt to call Tommy Tuberville asking for a specific delay on vote counting, which shows that Trump was indeed trying to use the mob to delay the certification).

But Trump also made an explicit demand of Pence, one Pence refused. That demand, by itself, was proof that Trump intended to interfere with the Constitutional counting of votes.

And he doesn’t address that — speech which is in no way protected — in his defense.

Nor does he address how he almost got Pence killed.

52 replies
  1. Bobby Gladd says:

    So, I’ve read both briefs, the House, and the Senate response. Gotta love, in the latter, how Donald Trump was simply within his constitutional free-speech right to call the 2020 election results “suspect.“ LOL. Shall we re-run the videos? Repost his tweets?

    That is some weak beer.

    Not that any of this stuff will matter, likely.

  2. WilliamOckham says:

    Are Trump’s lawyers just phoning it in? The whole thing is “We admit the sky is blue, Trump did nothing wrong, and it’s all irrelevant anyway”. Lather, rinse, repeat. Their whole brief could have been one paragraph.

    • Chris.EL says:

      This is a little off topic — don’t we need some good news?
      From Twitter:

      “Dave Brown
      “Replying to
      “In a memo dated Saturday, Austin fired all members serving on DoD’s advisory boards effective Feb. 16, and directed the immediate suspension of all committee operations while the Pentagon completes a “zero-based review” of at least 42 defense advisory committees.”
      ** Yay! **

        • BobCon says:

          A lot of the people on those 42 boards are there because the contractors lobbied for them. They wouldn’t be forced to start all over if they had pushed GOP Senators harder to keep the Lewandowski types away, and they aren’t really in a position to complain about Austin clearing the decks.

        • Peacerme says:

          Just thinking, remember when Republicans rebranded Democrats to “the democrat party”? Well we need to rebrand Republican Party. It shout become the torture, murder, racist party. It flows nicely and it’s an effective use of “shame”. The purpose of shame is boot from the tribe because the person or party poses a risk to the tribe.

          The torture, murder, racist party.

        • Max404 says:

          If I remember correctly, it was George Wallace who started it. Now it is a dog whistle for racist ears. It has become the usual way the trumpian wing of the Republican party refers to the Democratic party.

          In the end, turning the noun Democrat into an adjective without the required orthographic change, is a typical diction of uneducated southern dialect. Hence the dog whistle effect.

          As a Yank, it has always made me want to puke.

        • Ruthie says:

          It has always bugged me also, but I never knew why they so consciously used that construction. Whether it’s true or not I can’t say, but I recently read (can’t recall where) it’s because it ends with “rat”, and that sticks in people’s minds. It’s juvenile enough that it might just be true.

  3. Robert Britton says:

    Let The Farcical Impeachment Show Begin – Part Deux!

    TUNE IN brave listeners, as Donald “Covfefe” Trump seeks yet further media attention to continue the “Big Lie” and further his destruction of the the Republic!

    SEE “honorable” Senators prostrate themselves before the “Bearer of the Trump Toadstool and YETI Pubes” as they clamor over themselves in capitulation to “Mr. Trump”, a man many people say …MANY MANY PEOPLE SAY…is STILL the best and BIGLIEST PRESIDENT…perhaps even BIGLIER than that copper penny president,Abraham Lincoln!

    BOYS AND GIRLS OF ALL AGES, You will be AMAZED as throngs of the Grand Ole Party CAUCUS erupt in physical ecstasy in an orgy of partisan adoration at the King of Israel and of all the lands!

    WATCH as Senator Schumer, Nancy Pelosi and others prepare STRONGLY WORDED LETTERS on their Remington Model 2 Type Type Writers…TWITTER BE DAMNED, you vagabond Internet fools!

    SUBPOENAS will be issued and IGNORED!

    LIES WILL BE SHOUTED from the Hallowed Halls.





    • RMD says:

      “For the benefit of Mr. Kite
      There will be a show tonight
      on trampoline
      The Hendersons will all be there
      Late of Pablo Fanque’s Fair,
      what a scene
      Over men and horses hoops and garters
      Lastly through a hogshead of real fire!
      In his way
      Mr. K.
      will challenge the world!

      The celebrated Mr. K
      Performs his feat on Saturday
      at Bishopsgate
      The Hendersons will dance and sing
      As Mr. Kite flies through the ring
      don’t be late!
      Messrs. K. and H. assure the public
      Their production will be
      second to none
      And of course
      Henry The Horse
      dances the waltz!

      The band begins at ten to six
      When Mr. K. performs his tricks
      without a sound
      And Mr. H.
      will demonstrate
      Ten somersets he’ll undertake
      on solid ground
      Having been some days in preparation
      A splendid time is guaranteed for all
      And tonight
      Mr. Kite
      is topping the bill

      The Beatles

      • Mutaman says:

        “,,banned from playing on the BBC, supposedly because the phrase “Henry the Horse” combined two words that were individually known as slang for heroin.[citation needed] Lennon denied that the song had anything to do with heroin. ”

    • Peterr says:

      It’s a perfect opening, the most perfect opening for a legal document, maybe even the greatest ever. The democrat lawyers could only dream of crafting such a perfect opening.

      It’s bigly great.

    • Joseph Andrews says:

      In my town of 15K, there are two locally-owned banks and a small number of branch banks.

      I am familiar with the ‘owner’ of the older of the two locally-owned banks..the bank has been in his family for decades.

      Nice enough guy…traditional Catholic-type guy who, in his heart (I think)…really does have the long-term future of our town in mind.

      His father and grandfather really started the bank…and he has now put a plan into place in which his son will be taking over in 5-10 years, I think.

      I don’t know these people well…but I know them ‘sort of’.

      They are the only bankers I know fairly well.

      I think their politics are mostly Catholic conservative…but not Opus Dei conservative.

      What I think I know for sure is that they would have a hard time loading one thin dime to Donald Trump and his ilk.

      I value the comments I read here. Surely there are folks reading this who know some big-time bankers. What kinds of people are they?

      Would they loan money to Donald Trump?

      What is the magic elixir possessed by Donald Trump that has caused…over and over…supposedly the titans of the American (and German? Scottish? Russian?) financial world to…repeatedly…GIVE Donald Trump millions and millions of dollars?

      Are these titans of finance just not that smart? They’re no different from the MAGA crowd in terms of being scammed?

      I don’t think my hometown banker would give Trump a nickel to open a car wash!

      What am I missing?

      • Chris.EL says:

        Not a banker here … Just noticed something, the photos of Trump early in his presidency, and the portrait in our local Social Security offices, show him with a big shit-eating grin. (Just saw another one of him with Henry Kissinger on Wikipedia. Sorry for the colorful language — it’s just the way I had to say it.)

        Just makes me want to puke.

        Point? Trump seems to be able to CON people — hey! I’m a great guy! Lots of fun! I make a lot of money, and you will too! A con; a grift.

        Also possible that banks such as Deutsche Bank get big fish (i.e. Putin or other oligarchs) to persuade them to loan Trump money — Hey! Do this or I’ll take my business elsewhere…

        • John Lehman says:

          Maybe the down home “…grinning like a thistle eating mule…” might more appropriate for the more sensitive among us.

          He (we all know who) also had that expression in that obnoxious photo of him hugging our flag.

  4. CD54 says:

    The defense team’s act seems like an all-time worst attempt to fool Penn & Teller — so bad it must be an intentional gag. “Don’t watch our left hand please. Just focus on our right hand only. That’s all you need concern yourself with.”

    See: Mike Lee as a fact witness in the Senate?

  5. klynn says:

    So with Trump going with “…it is all Proud Boys fault – they planned it two months before I frenzied a crowd.” Can Trump’s commuting the sentence of the Stop The Steal architect and Proud Boys buddy be introduced as evidence to a plan to stop the certification?

    • Joseph Andrews says:

      …how exactly will the Proud Boys and their buddies feel about being fingered by their hero?

      Somehow someway actions need to be taken that reduce Trump’s standing in the eyes of his worshippers.

      Maybe this is a start…

      • Stacey says:

        Yes and no. There are definitely people who will just grab onto Trump harder, each cult member takes to disillusionment differently at different times. But when you study how and why individuals leave a cult it’s kind of interesting how hard and also not hard it can be for them.

        There will be a LOT of Trump supporters who are facing jail time and other legal expenses that have suffered the notion that he already did not pardon them–which they may well have expected him to do–and so that was a shock. But once to save his own ass he definitively sells them out as acting on their own and not responding at all to his incitement–not together with them–that will do it for a good number of them!

        You saw a lot of this already on line when he finally accepted the election and left office. I would view it like a dog infested with fleas. Each time the dog shakes, a number of fleas fall off–can’t hang on after that. It really is interesting to listen to ex-cult members of any kind and hear what string they pulled that led to their leaving the cult. It can be shockingly quick on the wake up side of this for people, and it has nothing to do with the number or size of the things they were willing to swallow already.

        Cult psychology is not an exercise in logic going in and won’t be getting out, remember that!

    • earlofhuntingdon says:

      How will they react? The way most people react who are in abusive relationships: “Please, sir, may I have another.”

  6. Peterr says:

    Sometimes two disparate pieces of news hit you in succession, in a way that is stunning.

    I just finished reading a bunch of articles and watching videos of the late Captain Sir Tom Moore, a WWII vet who raised over 32m pounds for the National Health Service in a walk-a-thon fundraiser in his daughter’s back yard while under lockdown last year, and who later led a cover of “You’ll Never Walk Alone” that became a #1 hit in the UK. Personally, he was the embodiment of “Keep Calm and Carry On,” even in the pandemic. His unlikely fame came as Boris Johnson was in the ICU, and Britain desperately needed that message of hope that he gave.

    And then I came here, to read this.

    You can’t find a more disparate pair of folks than Donald Trump and Captain Tom.

    • Joseph Andrews says:

      Peterr: I feel the same way. Often. And it seems worse with the pandemic all around us. What I mean is I’m a bit edgy these days. I still find it difficult to watch video of the insurrection. It just can’t be true. But it is. So your word ‘stunning’ works for me.

      Somehow…some way…the organizers of the insurrection need to be held accountable. It will be a happy day when they are brought to justice.

    • Stacey says:

      Yeah, that guy in the middle who literally leaves the set may as well have said out loud “Shut the F UP! Dominion is already suing anyone who even says that shit, and if we let you say it on our air, we’re getting sued within an inch of our life, JUST LIKE YOU, FOOL!”

      :-) asking the control room to ‘get us out of here!’ “Beam me up, Scotty!” then he’s like, I’m getting my own self out of here before I’m named personally. Now that’s how you distance yourself from something!

  7. Molly Pitcher says:

    Trump’s answer to Article 1 of the Impeachment doesn’t start off very well. United States is misspelled.

  8. PeterS says:

    Perhaps the most disgusting bit of the defense is the word “convenient” in explaining changes to election law and practice: these were made “under the convenient guise of Covid-19 pandemic safeguards”.

    As if Covid 19 were not a justified reason to modify how the election was carried out. 450,000 plus now dead.

  9. biff murphy says:

    I have to get extra beer this weekend!
    Super Bowl Sunday and the second impeachment of the donald on Monday!
    What a lineup

  10. joberly says:

    EW—isn’t the filing today by Castor & Schoen a response to the Jan. 13 House article of impeachment? I believe that C & S filed their response to the impeachment article without having seen the brief filed by the House managers today. The former president’s response to the House brief is due next week. In the impeachment article passed by the House there are just two mentions of Pence, neither by name: 1) he presided over the joint session and 2) that the insurrectionists “menaced Members of Congress, the Vice President, and Congressional personnel.”

      • Peterr says:

        Lin Wood, you say?

        From Atlanta TV station WSB:

        Attorney Lin Wood filed lawsuits and held rallies, claiming people voted illegally in the 2020 presidential election.

        Now Channel 2 investigative reporter Justin Gray has learned that the state has launched an investigation into whether Wood himself was a legal Georgia voter.
        Content Continues Below

        Gray confirmed Tuesday that the Georgia Secretary of State’s Office has launched an investigation into whether Wood was eligible to vote in Georgia, whether he broke the law by casting his ballot and whether he was actually a Georgia resident.


        Sources at the secretary of state’s office say an email that Wood sent to Gray caused them to launch an official investigation.

        Sounds very on brand to me. See “selfie cops.”

  11. Mitch Neher says:

    Reportedly, Trump’s lawyers claim [sarcasm alert] that the Senate has “no authority” to try Trump’s impeachment after Trump no longer holds office.

    Is that “legal claim” also a “concession speech”? Or, if that “legal claim” is not also a “concession speech,” then is it still admissible as a “legal claim”?

    If, for the sake of guffawing, Trump’s out-of-office, impeachment trial actually were “unconstitutional,” and since the Supreme Court has not one word to say on such political questions, then what other legal remedy should Trump’s lawyers seek?

    Impeachment of The United States Senate?? Would Senate Republicans make themselves into just such a living, constitutional “suicide pact”???

  12. Bruce Castor is a ConMan says:

    3/8/14 Phila Inquirer pg A2 by Jeremy Roebuck
    “…Castor spent much of…. hearing lauding his client as a sterling example of up-from-the-bootstraps American entrepreneurial spirit….The recession hit him hard. But even as he falsified loan applications, he did so with the full expectation that he could generate enough money to recover once the storm passed, Castor said.
    “This is still America,” [Castor] said. “We think working hard and enjoying the fruits of your labor is something to be admired.”
    [Judge] Diamond deflated that narrative with a single cutting remark.
    Working to pay off his losses, “Mr. Pouls chose not to go into bankruptcy,” Castor had said.
    [Judge] Diamond fired back: “No, he chose to steal money instead.”…”

  13. Rugger9 says:

    It’s a minor point, but I would suspect that the reason the second Giuliani call was left out of the House brief (noting it can be argued later) could be because no one has yet identified the Senator that received it.

    Other than that it’s clear which side did their homework. In a court, that would be the death knell of DJT’s case but this is a political exercise not subject to any rules of evidence or verdict other than what the Senate imposes on itself. I was amused to see Turley saying how a delay would be needed to give DJT’s team time to prepare a defense, but since we have seen more damaging information come out almost every day this week, Turley’s crazy that it helps his side.

    In a related topic, these GOP Senators look at Reps MT Greene and Boebert and tremble in their shoes. They know it is political suicide to convict DJT in their upcoming primaries.

  14. sand says:

    This does not seem to be a popular view, but weighing the odds and as a pure political play, I’d think more GOP senators might vote to convict. Trump is a stage 4 cancer on the party, unpredictable in all things except for the ultimate result. On an individual basis, senators could vote to cut out the cancer, giving themselves (at least) a year or two to rehabilitate themselves from the consequences of such a vote. Trying to stay in Trump’s good graces might save them from harm now, but they will need to watch their backs right up until the next election. I’d err on the side of certainty and take my lumps up front.

    GOP Senator statement could be: “President Trump had bold ideas and the courage to pursue them. He put America first with no apologies, and I am one of the biggest supporters of that approach. Unfortunately, he took things too far in the end, which led to a riot that took the life of a dedicated police officer, among others. While I will always remain a supporter of President Trump’s vision, I also believe that we each must take personal responsibility for the results of our actions. Given the facts that have been presented and my duty as I understand it, I have no choice but to vote to convict. Even great leaders make mistakes. Going forward, I will work even harder to carry forward the vision that I have supported from the beginning of this proud movement, which has a goal that no true patriot can fail to support–to Make America Great Again.”

    • timbo says:

      Unfortunately, these GOP Senators are a lot more nutty, craven lot than the ones around during Watergate. But, yeah, some of them will vote to convict when a convincing case is made and if Trump’s popularity wanes further into dumpster fire territory.

  15. Vinnie Gambone says:

    I predict he agrees to testify, that his narcissism is so far gone he believes he can talk his way out, that he believes he can debate any of them, and will take this opportunity to show the world how tough he is, and he will incite his followers in the process -again. Of all the stupid quotes he’s famous for he won’t be able to help himself getting out one last zinger. General Patton-esque. He’s now the Rocky Balboa of Politics . What did he say to Pence? History will remember you either as a patriot or a pussy. Same goes for him. This will be his final stand. Step up bitch.Let’s see what ya got.

    • timbo says:

      He didn’t. The Senate’ll have to subpoena him and have it sustained by the Supremes if they want it to happen in all likelihood. And it’s obvious that currently they’re not keen on it… or, at the very least, waiting for the trial to begin before working on it.

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